Legislature(2023 - 2024)BARNES 124
04/14/2023 01:00 PM House RESOURCES
Note: the audio
and video
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
Audio | Topic |
---|---|
Start | |
HB120 | |
HB104 | |
Big Game Commercial Services Board | |
HB98 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+= | HB 120 | TELECONFERENCED | |
+= | HB 104 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+ | HB 98 | TELECONFERENCED | |
+ | TELECONFERENCED |
HB 98-STATE OWNERSHIP OF SUBMERGED LAND 2:03:16 PM CHAIR MCKAY announced that the final order of business would be HOUSE BILL NO. 98, "An Act relating to state ownership of submerged land underlying navigable water within the boundaries of and adjacent to federal areas; and providing for an effective date." 2:03:54 PM REPRESENTATIVE SADDLER, prime sponsor of HB 98, introduced the bill to the committee. He said HB 98 seeks to end the federal government's decades-long, unjust denial of a fundamental right of Alaska's statehood: control of navigable waters in Alaska and the lands beneath them, regardless of whether they are in federal conservation units or not. He continued to paraphrase from the document in the committee packet titled "HB 98 Sponsor Statement," which read as follows [original punctuation provided]: The 1959 Statehood Act transferred 105 million acres of federal land to Alaska. In addition, the U.S. Constitution and federal law also made the state owner of navigable waters and the lands beneath them at the instant of statehood. Navigable waters are the lakes, rivers and streams that supported, or could have supported, in-state travel at the time of Statehood. They provide travel routes, recreational access, hunting opportunities, aquatic habitat and more, and represent corridors of commercial travel critical to Alaska's prosperity. All other states assumed undisputed control of such lands and waters inside their borders upon joining the Union. Despite their obligation to do so, federal authorities have dragged their heels in granting Alaska clear title to its submerged lands. Instead, they've forced the state to prove the navigability of waterways on a case-by-case basis at a rate that would take hundreds of years to conclude. Enough is enough. HB 98 simply but confidently declares Alaska's title to the beds of navigable waters, including those within federal parks, wildlife refuges, forests and other conservation units, unless specifically withdrawn before Statehood. It identifies and enumerates water bodies within federal areas in which the State has a title interest. And it directs the Department of Natural Resources to make progress reports to the Legislature on its continuing effort to delineate navigable waters in federal areas in Alaska. The need for this bill is dramatized by the case of Alaska hunter John Sturgeon, who fought and won two U.S. Supreme Court decisions clarifying that Alaskans have the right to use navigable waters inside federal areas, and that federal regulations do not trump state ownership, even in conservation units created by the Alaska National Interest Lands Conservation Act in 1980. REPRESENTATIVE SADDLER noted that the Tongass National Forest is one of those federal forest units withdrawn before statehood. 2:07:03 PM MARY JACKSON, Staff, Representative Dan Saddler, Alaska State Legislature, on behalf of Representative Saddler, prime sponsor of HB 98, pointed out that Section 9 is the detailed list of waterways and comprises 83 of the bill's 88 pages. She provided the committee with hard copies of the sectional analysis titled "HB 98 Sectional Analysis," which read as follows [original punctuation provided]: Section 1 Amends uncodified law by adding a new section to describe the purpose of the bill. Section 2 Amends AS 38.04.062(a) to Page 2, line 1, revises the phrase "at the time" to become "on the date", and adds the clause ', including submerged land underlying navigable water listed in AS in AS 38.04.063 that is within the boundaries of and adjacent to federal areas.' Provides clarity that the State owns all submerged lands under navigable from the date of statehood, including lands within the boundaries of sand adjacent to federal lands. AS 38.04.062(a) declares that 'the state owns all submerged land underlying navigable water to which title passed to the state at the time the state achieved statehood under the equal footing doctrine or 43 U.S.C. 1301 - 1315 (Submerged Lands Act of 1953).' Section 3 Amends AS 38.04.062(d) by (Page 2, line 10), revising the phrase "at the time" to become "on the date", and adds the following sentence: 'The commissioner shall conduct ongoing research to identify submerged land underlying navigable water within the boundaries of and adjacent to federal areas to determine state title to corresponding submerged land underlying navigable water.' Section 4 amends AS 38.04.062(c) by revising the phrase "at the time" to become "on the date". Section 5 amends AS 38.04.062(d) by referencing the list of navigable waters described fully in new AS 38.04.063 and revises the phrase "at the time" to become "on the date". Section 6 - Amends AS 38.04.062(e) by inserting the clause '(b) or (c) of (new section 3 and 4).' Subsection (e) operates as a disclaimer for determinations of navigability by the DNR commissioner, providing that they do not create an interest in real property, may not be recorded, and do not constitute final agency action. Because the proposed edits to AS 38.04.062 create new obligations for the DNR commissioner concerning navigable waters in SA HB 98 3/15/23: maj federal areas, which may include navigability determinations made because of administrative or judicial proceedings, '(b) or (c) of' was inserted before 'this section' to distinguish the commissioner's non-binding determinations from determinations that have binding effect. Section 7 amends by revising the phrase "at the time" to become "on the date". Section 8 - Adds new subsections (h) - (j) to AS 38.04.062 that creates an obligation on DNR to report annually to the legislature. Subsection (h) requires the commissioner to submit an annual report to the legislature by the first day of each regular session identifying navigable waters within the boundaries of and adjacent to federal areas that are not listed in AS 38.04.063(b) and any modifications or changes to navigable waters within the boundaries of and adjacent to federal areas that have been previously identified and listed in AS 38.04.063(b) Subsection (i) provides that the commissioner's failure to include or identify navigable waters in accordance with the requirements of AS 38.04.062 does not relinquish any state right in the submerged lands underlying those navigable waters. Subsection (i) is intended to preserve the state's rights to submerged lands. Subsection (j) provides that a navigability determination of the commissioner is based on evidence consistent with the definition of 'navigable water' at AS 38.04.062(g) and consideration of the factors listed in AS 38.04.062(j)(1-4). Section 9 - Amends AS 38.04 by adding a new section AS 38.04.063 concerning state ownership of submerged within federal areas. This section makes clear that since statehood, that the State owns, claims, occupies, possesses, manages, and controls all submerged lands underlying navigable waters listed in (b) of this new section of statute, except as provided under AS 38.04.062(f). It further identifies navigable waterbodies that are currently known within the boundaries of and adjacent to federal areas. This section was drafted to model existing AS 19.30.400 which codifies state claims of rights-of-way granted under former 43 U.S.C. 932 (Revised Statute 2477). Page 4 to page 87. Section 10 - Amends AS 38.04.910 by adding new paragraphs for definitions, renumbering existing definitions, and adding proposed definitions for 'federal areas,' 'mean high water,' 'mean high water line,' 'ordinary high water mark,' and 'submerged land.' Section 11 repeals existing 38.04.06(g) which is current definition. Section 12 - Amends the uncodified law of the state to add a new section providing that Section 9 of the bill is retroactive to January 3, 1959. This bill will require a special vote of two-thirds of the members of each house because the proposed retroactive effective date for this section varies from the standard language providing for an effective date 90 days after enactment. Section 13 - Provides for an immediate effective date under AS 01.10.070(c). 2:08:38 PM BRENT GOODRUM, Deputy Commissioner, Office of the Commissioner, Department of Natural Resources (DNR), testified in favor of HB 98. He explained that oftentimes the federal government does not take a position on the ownership of submerged lands and does not say that it explicitly has ownership interest, thereby denying the State of Alaska the ability to bring a quiet title action in federal court because such an action requires a case or controversy. He said HB 98 would flip the script by codifying the navigable water bodies in federal areas as navigable-in-fact for title purposes. The federal government, he continued, would be put on formal notice that the State of Alaska owns these submerged lands and intends to manage these water bodies even though they flow through post-statehood federal conservation system units (CSUs). The burden would then be on the federal government, he specified, to gather data and to find resolution if it disagrees with the state's position. Federal CSU enforcement officers, he added, wouldn't be to carry out federal action or enforcement by saying that an affirmative decision or determination hasn't been made. He referenced two unanimous US Supreme Court decisions on that point in the matter of Sturgeon v. Frost. MR. GOODRUM pointed out that the state has waited 64 years for federal authorities to determine the navigability of the state's water bodies. He said the current status quo of uncertainty and ambiguity of ownership, management, and control of the state's navigable water bodies is not in the state's or anyone's best interest. The time is now for the State of Alaska to flip the script, he opined, and to decisively identify and codify the state's navigable rivers and lakes. 2:12:00 PM The committee took a brief at-ease to deal with sound system technicalities. 2:12:49 PM REPRESENTATIVE PATKOTAK inquired about the administration's intended end consequence for vessel traffic through navigable waters and the potential for political subdivisions of the State of Alaska to take some degree of permitting authority for access to navigable waters. MR. GOODRUM related the state's belief that under the equal footing doctrine, all navigable waters within the state rightfully vested with the state as of 1959, but to date the federal government hasn't acknowledged the state's ownership rights. Ownership rights, he explained, give the state the ability to manage the resources beneath those submerged lands as well as the activity above them regarding transportation. He related that when Mr. Sturgeon was using his hovercraft on the Nation River, a river that had already been determined navigable in a federal court, Mr. Sturgeon believed he was on state land and therefore state regulations applied as opposed to US National Park Service regulations that prohibited hovercraft from operating within [national] parks. Mr. Goodrum further related that the water body Mr. Sturgeon was on was an inholding within a [national] park. REPRESENTATIVE PATKOTAK asked whether the intent with passage of HB 98 is that subdivisions like a municipality or borough can assume the authority that the state is assuming if it's within their first-class status or not. MR. GOODRUM responded that he believes the intent of HB 98 is to verify that the State of Alaska is the rightful entity, and the state would be the one determining what types of access would be appropriate on those water bodies. 2:16:10 PM REPRESENTATIVE MCCABE requested the definition of "navigable waters" for the purposes of what HB 98 would do. MR. GOODRUM answered that court rulings have defined navigable water as those on which customary and ordinary vessels [could navigate] for travel, trade travel, or commerce within the state as of statehood. He deferred to Mr. Jim Walker to provide further definition. MR. GOODRUM, in further response to Representative McCabe, confirmed that the crux of HB 98 is to expedite the ability to declare a body of water navigable so that everyone knows whose water it is and there isn't another court case like that of Mr. Sturgeon's. 2:18:53 PM JIM WALKER, Chief, Public Access Assertion & Defense Section (PAAD), Division of Mining, Land and Water (DMLW), Department of Natural Resources (DNR), provided a PowerPoint presentation titled "State Ownership of Submerged Lands House Resources HB 98," dated 4/14/23. He said he would like to phrase the issue of why these navigable waters are so important. He addressed slide 2, "The Navigable Waters Issue," which read as follows [original punctuation provided]: • Alaska holds an estimated 800,000 miles of navigable rivers • Alaska holds an estimated 30 million acres of navigable lakes • Alaska owns the submerged lands beneath every navigable-in-fact river and lake, and beneath tidally influenced waters in the state, unless a valid pre-statehood withdrawal EXPLICITLY defeats state title • In Federal Conservation System Unit areas created in Alaska post-statehood, the submerged lands beneath navigable-in-fact and tidally influenced waters are State-owned lands MR. WALKER maintained that in most federal areas it is the State of Alaska, not the federal government, that owns the submerged lands under navigable waters and tidally influenced waters. He spoke to slide 3, "Federal Areas Where the State of Alaska Owns Submerged Lands," which read as follows [original punctuation provided]: • National Park Service: Noatak National Preserve (NPr), Kobuk Valley National Park (NP), Bering Land Bridge NPr, Denali National Park and Preserve (NPP) (ANILCA additions), Wrangell-St. Elias NPP, Glacier Bay NPP, Katmai NPP, Kenai Fjords NP, Gates of the Arctic NPP, Lake Clark NPP, Yukon-Charley Rivers NPr, etc. • U.S. Fish and Wildlife Service: Becharof National Wildlife Refuge (NWR), Innoko NWR, Izembek NWR, Kanuti NWR, Kenai NWR, Kodiak NWR, Koyukuk NWR, Nowitna NWR, Selawik NWR, Tetlin NWR, Togiak NWR, Yukon Delta NWR, Yukon Flats NWR, etc. • U.S. Forest Service: Tongass National Forest, Chugach National Forest • Bureau of Land Management: Beaver Creek Wild and Scenic River (WSR), Birch Creek WSR, Fortymile River WSR, Gulkana River WSR, Unalakleet River WSR, Delta River WSR, etc. 2:22:53 PM MR. WALKER discussed slide 4, "Status of Efforts to Clear Title 1959 to Present," which read as follows [original punctuation provided]: The federal government acknowledges Alaska's clear title to its submerged lands beneath navigable-in-fact and tidally influenced rivers and lakes in only: • 9 percent of 800,000 river miles of submerged lands under state-owned rivers • 16 percent of 30,000,000 acres of submerged lands under state-owned lakes MR. WALKER, in reference to the importance of state ownership, said it will take hundreds of years at this rate [for the federal government to acknowledge the State of Alaska's ownership]. He spoke to slide 5, "Sturgeon vs. Frost 136 S. Ct. 1061 (2016) & 139 S. Ct. 1066 (2019)," which read as follows [original punctuation provided]: U.S. Supreme Court rules unanimously: federal regulations do not supersede SOA ownership and management of navigable waters in ANILCA CSUs MR. WALKER addressed the bubble chart on slide 6, "Statehood Defense of Navigable Waters Involves Many Interrelated Assertions of State Ownership and Authority." He related that DNR and the Department of Law (DOL) are working together attempting to fulfill the promises of statehood, which include the equal footing doctrine and other federal law that say the state owns these submerged lands. He specified that the state has intensified [quiet title] litigation against federal authorities and has intensified management action and state mapping of navigable waters. He submitted that legislatively codifying state ownership of submerged lands in federal lands is key to expediting state ownership. 2:25:51 PM REPRESENTATIVE RAUSCHER inquired about who currently owns the submerged lands under man-made lakes or ponds. MR. WALKER replied that free-flowing water impounded to create a pond or lake is never owned privately, the water is owned by the people of Alaska pursuant to the public trust doctrine. However, he continued, when impounding water and creating a larger footprint of submerged land, that submerged land doesn't necessarily belong to the State of Alaska. The water itself belongs to the public, he advised, but whether the submerged land is in public or private ownership is going to depend on case specific information. 2:27:41 PM MR. WALKER resumed DNR's presentation for HB 98. He spoke to slide 7, "Proposed Codification Legislation Overview," which read as follows [original punctuation provided]: 1. Codifies State of Alaska (SOA) ownership, management and control of navigable waters and submerged lands within federal areas not covered by a valid pre- statehood withdrawal explicitly defeating state title 2. Lists specific navigable waters and submerged lands in federal areas statewide belonging to SOA 3. Enshrines foundational elements of relevant caselaw to guide in navigability determinations 4. Establishes annual reporting requirement to legislature MR. WALKER discussed slide 8, "Proposed Codification Legislation," which read as follows [original punctuation provided]: 1. Codifies SOA ownership, management and control of navigable waters and submerged lands within federal areas not covered by a valid pre-statehood withdrawal explicitly defeating state title • Underscore state ownership, management and control of lands owned by the state since statehood • Clarify and educate: Clearly enumerates the extent of state management authority within federal boundaries • Increases public understanding and aids in management • Correlates with publicly maintained records and maps • Reflect reality: Accurately depicts land ownership and state boundaries with ongoing quality control MR. WALKER expounded that the first phase codifying the state's ownership clarifies for the public, federal agencies, and state adjudicators as to exactly what the state owns. This educational aspect of the legislation, he said, will make the job easier and more efficient for the state's adjudicators for permit applications and will clarify in the public's mind whether a person needs to apply to the state for a permit or whether it falls within federal jurisdiction. This bill, he added, will reflect reality on what is navigable within federal areas and plants the state's flag onto state-owned lands. 2:30:39 PM Mr. Walker paraphrased from slide 9, "Proposed Codification Legislation," which read as follows [original punctuation provided]: 2. Lists specific navigable waters and submerged lands in federal areas statewide belonging to SOA • First phase: All NPS and USFS areas statewide plus Tetlin National Wildlife Refuge • Second phase: Remaining USFWS refuges • Third phase: All BLM lands • Fourth phase: Ongoing process of clarification, modification and amendment Framework for proposed statute is based upon RS 2477 Right-of-Way codification project in 1990s [AS 19.30.400]. MR. WALKER elaborated that in the second phase, the list of specific navigable rivers will become longer if HB 98 is passed. He related that five members of his team have been studying aerial imagery, prior navigability reports prepared by federal authorities, and looking at historical records of usage to assess where the navigable waters are within federal areas. So far, he said, the team has completed its studies of National Park Service (NPS) and US Forest Service (USFS) areas, and one US Fish and Wildlife Service (USFWS) refuge. If the bill is passed, he continued, [PAAD] will hopefully have concluded its work on USFWS refuges and will come before the committee next session to ask for the addition of the navigable rivers found in those refuges. Mr. Walker stated his hope that the following year [PAAD] would again come before the committee to ask for the addition of the navigable waters and tidally influenced waters within US Bureau of Land Management (BLM) areas statewide. Afterwards, he specified, DNR would have ongoing responsibility to come back to the legislature with corrections and updates to the list within statute. He added that DNR would maintain an online digital map that uses the bill's proposed framework which is based upon RS 2477 right-of-way so the public and agencies would be able to see exactly what the state owns. 2:34:08 PM MR. WALKER displayed slide 10, "State-Owned Navigable Waters Federally-Acknowledged to Date," a map of rivers and federal areas in Alaska. He explained that the rivers shown in blue represent places where there is a grievance, and the federal government has acknowledged state ownership. The rivers depicted in pink represent the rivers for which the federal government has yet to decide, he further explained, so until such time as it appoints a determination the federal government is continuing to act like these rivers are not navigable. 2:37:06 PM MR. WALKER addressed the map on slide 11, "State-owned Navigable Waters after proposed codification." He explained that the map depicts [all the navigable waters] currently included within the [proposed] statute, such that many of the pink areas have become blue. He said [PAAD] undertook its own navigability assessments by applying the standards in federal law to determine which waters are truly navigable-in-fact and tidally influenced. MR. WALKER proceeded to the map on slide 12, "Noatak and Kobuk Valley National Parks Federally-Acknowledged Navigable Waters." The federal government, he noted, has acknowledged state ownership of the Kobuk River [shown in blue] as it runs through Kobuk Valley National Park (shown in green). The federal government, he continued, has also acknowledged partial state ownership of the Noatak River [shown in blue and purple] as it runs the Noatak National Preserve (shown in tan). He drew attention to the confluence of the Noatak and Aniuk rivers, shown in [purple], and advised that the federal government says this area is not navigable despite being approximately 300 feet wide and flowing at a rate of over 3,000 cubic feet per second. He said the State of Alaska will file litigation in this regard later this year or in early 2024. 2:38:52 PM MR. WALKER specified that HB 98 looks at the waters depicted in pink on the map and which [PAAD] will assess [for navigability]. He moved to slide 13, "Noatak and Kobuk Valley National Parks Navigable Waters After Codification," and said that under HB 98 each of the waters depicted in blue would be owned, managed, and controlled by the State of Alaska. CHAIR MCKAY remarked that that is a stunning difference. MR. WALKER reviewed slide 14, "Proposed Codification Legislation," which read as follows [original punctuation provided with some formatting changes]: 3. Enshrines foundational elements of relevant caselaw to guide in navigability determinations Susceptibility criteria to guide DNR in making navigability determinations includes, but is not limited to: o Watercraft Type: Round raft, Canoe, Jon boat, Jet 1 boat o Susceptibility: Documented modern day use is 2 sufficient o Navigability doesn't require a clear channel, two-way traffic, or historical evidence if the 3 river is susceptible to navigation 1 Alaska v. Ahtna, Inc., 891 F. 2d 1401 (9th Cir. 1989) (Gulkana River) 2 Alaska v. United States, Case No. 3:12-cv-00114-SLG (D. Alaska 2016) (Mosquito Fork (Fortymile) River) 3 PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012); Utah v. United States, 403 U.S. 9 (1971); United States v. Utah, 283 U.S. 64 (1931) 2:40:50 PM MR. WALKER paraphrased from slide 15, "Proposed Codification Legislation," which read as follows [original punctuation provided]: 1. Enshrines foundational elements of relevant caselaw to guide in navigability determinations • Section Ten: o Define geographical scope of legislation square4 Post-statehood federal area o Define key navigability terms for purposes of legislation including square4 Mean high water square4 Mean high water line square4 Navigable water square4 Ordinary high-water mark square4 Submerged land MR. WALKER referenced Representative Patkotak's earlier question and said HB 98 specifically only covers federally owned lands managed by federal authorities. The bill, he added, does not address Native corporation lands or private property in any way. MR. WALKER addressed slide 16, "Proposed Codification Legislation," which read as follows [original punctuation provided]: 4. Establishes annual reporting requirement to legislature Charges DNR with responsibility to conduct ongoing navigability research to determine state title to submerged lands within relevant federal areas • Ensures non-exhaustive codified list best reflects reality o Ensures public facing document is accurate • Further refinement and fine tuning as our quiet title litigation continues • Provides leadership to federal authorities and a path forward to settle ambiguity so that land management benefiting the public will follow MR. WALKER concluded his PowerPoint presentation with slide 17, "Proposed Legislation," which read as follows [original punctuation provided]: Alaska's ownership of Submerged Lands beneath navigable-in-fact and tidally influenced rivers and lakes is one of the fundamental promises of Statehood. It's been 64 years. It is time for the Federal Government to keep its promise to the State of Alaska. HB98 is a bold step in that direction. CHAIR MCKAY announced that HB 98 was held over.